No. 2-09-0536 Filed: 9-17-10

_________________________ __________

_____________________________________________ _ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

_________________________________________ __________

_____________________________ _ In re MARRIAGE OF ) Appeal from the Circuit Court JAMES F. TRU

HLAR , ) of Du Pa ge Co un ty. ) Petitioner-Appellee, ) ) and ) No. 90--D--2574 ) DEBBI E M. TRUHL

AR, ) Honorab le ) Brian R. McKillip, Responde nt-Appe llant. ) Judge , Pres idin g.

_________

______________________________________________________________________ _ _ JUSTICE HUTCHI NSON deli

vered the opinion o f the cou rt: Responde nt, Debbie M . Truhlar, appea ls from an order of the circ uit court o f Du Pag e County vacatinga prior order requiring petitioner, JamesF. Truhlar, to contribute to the college expenses of one of their children. For the rea sons set forth below, we reverse. The relevant facts for thepurposes of this appeal are not in dispute. In 1994, the trial court entered a judgme nt dissolvin

g the pa rties'marriage. The judgment incor porated the parties' marital settlement agreement, which contained the f ollowing provision:

" EDUCATION

*** 2. The Husba

nd and Wife

shall ea ch contr ibute to the

costs of higher education of the children. The amount that each of the parties shall pay may be ag

reed upon by the parties at the time each

child is to enter a school of higher education; and in the eve nt that the partiesNo. 2--09--0536

-2-

are unabl e to agr

ee, the C ourt shal l determi ne the am ount that e ach par

ty shall pay

base d uponeach of the parties'

ability to pay at that time and upon said child' s desire and aptitude to enter a school of

higher educati on. The Co

urt shall a

lso consid

er the a mount that s aid child can con tribu te to t he high e r e du ca ti on in de te rm in in g t he co nt ri bu ti on of ea ch pa rt y. The contribution of

each party

is further conditioned on

the fact that commencement of such higher education will occur within twelve months of graduation from a

secondary

school and terminat e within sixty

months of s

uch date , excluding

delay s occasi oned by illnesses or mandatory military

service." In2008, Deb

bie filed a petition seeking James's c ontribution to the co llege e xpenses of

their daughter, Ashley, who was a pproaching

her eighteenth birthday . Evidence adduced at the hearing

onthe petition established that Ashley had b een admitted to National-Louis University ; she had obtained substantia

l financ ial assist

ance in t he form o f gran

ts and scholarship s; she held a pa rt-time job; and she planned t

o live at home as a c ost-savin g measu re. The evidenc e furthe

r showed th a t James had rema

rried; hi s sole source of income was social security disability

benefits of $1,825 per month; and

his wife's monthly ea

rnings were approximately twice that amount. On July 10, 2008, the trial court ordered James to contribute $361.25 per month toward Ashley 's college education. James subseque

ntly moved to va

catethe order. In support of the motion, James argued, inter alia , that, under

federa l law, his s ocial se curity

disability benefit s were b eyond the re ach of c reditors , so there was no way

to enforce the contribution obligation. The trial court ag reed. Although the trial court no te d a ut ho ri ty t ha t s oc ia l s ec ur it y di sa bi li ty p aym en ts co ul d b e r ea ch ed to sa ti sf y a c hild suppo rt obligation, the trial court concluded that contribution to an emancipated c hild's colleg eNo. 2--09--0536

-3-

education was not child suppor

t. Debbie timely appeale d after

the trial court de nied her motion to reconsider. Section513 of the Illinois Marriag e a nd Dissolut ion of Mar

riage Act (the Marriage Act) provides , in pertinent part :

"(a) The cour

t may award s ums of mone

y ou t of the pr operty and income of

either or both parties or the estate of a decease d parent, as equity

may require , for the support of the child or c hildren o f the par

ties who ha

ve attain ed major ity i n the following ins tances: (1) When the child is mentally or phy sically disabled and no t otherwi s e emancipated, an application for support may be made before or after the c hild has at ta in ed ma

jo ri ty. (2) The court may

also make provision for the educational expenses of the child or children of the parties, whether of minor or majority ag e, and an application for educational expenses may be made before or after the c hild has attained

ma jo ri ty,

or after the death

of either parent. The authority under this Section to make provision for educati onal expen ses extend s not only to perio ds of college education or professional or other train ing after graduation from high sc hool, but also to any period during which the child of

the part ies is still a

ttending high sch ool, even t hough he or she attained the age of 19. *** * * * (b) In making awa

rds under paragraph (1)

or (2) of subsection (a), o r pursuant to a petition or motion to decrease, modify , or terminate any such award, the court

shallconsider all re levan t fact ors th at app ear reas onabl e and n ecessa ry, inclu ding:No. 2--09--0536

-4- (1) The f inancia l resour ces of both paren

ts. (2) The standar

d of living

the child would have enjoye d had the marriage not been dissolved. (3) The financial resources of the c hild. (4) The child's academic per formance." 750 I

LCS 5/513 (West 2008). Pursuant to this provision, the trial court originally ordered James to con tribu te to A shley's colle ge educati o n expe nses. As noted, however, James successfully moved to vacate the order, persuadingthe trial court that his income, which consisted of social security disability benefits, was protected by section 407(a)

of the Social Security Act

(the Act), which prohibits the assignment or transfer of the future pay

ment of benefits under subchapter I I of the Act a nd exempts a

ny b enefits paid or p ayab le u nde r su bch apt er II from"execution, levy, a ttachment, garnishment, or other lega l process , or

to the operation of any

bankruptcy or

insolvency law." 42 U.S.C. §407(a) (2006). The exemption covers social security disability payments. See DeTienne v. DeTienne , 815 F. Supp. 394, 396 (D. Kan. 1993). However, section 659(a) of the Act (42 U.S.C. §659(a) (2006)) carve s out a limitedexcep tion to th e exem ptio n set f orth i n sect ion 4 07(a), by waivin g the Un ited S tates 's soverei gn immuni

ty w ithrespect to certain proceeding s to collect "child support or alimony ." We note that, pursuant

to section

407(b) of the Act, a

ny s tatute cr

eating an except

ion to the exemption must do so by express refe

rence to section 407. 42 U.S.C. §407(b) (2006). James argues that section 659(a) does not satisfy this requirement. To the contrary , section 659(a) expressly state s that the exception it creates applies "[n]otwithstandingany other pr ovision of law ( including section 407 of [the Act] ***)." (Emphasis added.) 42 U.S.C. §659(a) (2006).No. 2--09--0536

-5-

For purposes of section 659(a), "child support *** means amounts required to be paid under

a ju dg me nt , d ec re e, or or de r * ** is su ed by a co ur t o r a n a dm in is tr at iv e a ge nc y of co mpetent jurisdiction, for the support and maintenance of a chil d, in cludi ng a child who ha s atta ined t he age of majority under the

law of the

issuing St

ate ." (Emphasis a dded.) 42 U.S .C. §659(i)(2) (2006). Invacating the order that James contr ibut e to As hley's col lege education, the trial court reasoned that such con tribution was not chi ld support

. The dispositive issue is whether the pay ment of all or

part of the colleg e educa

tion of a c hild wh o h as reached the age

of majority constitutes pay ment for "the support and maintenance of the child" within the meaning of section 659(i)( 2) and therefore constitutes child support. The lega l obligation of parents to support their children corresponds to the children's " right to be given care by those who

brough t them into t

he world unti l they are

old enough to take care of themselves." Kelley v. Kelley , 317 I ll. 104, 1 10 (1925) . Support si gnifie s the prov ision of lif

e's ne cessitie s. Accord Huffman v. Huffman , 50 I ll. App. 3d 217, 222(1977) ( child supp ort awar d was not a

n abuse of discretion "[i]n view of the relative incomes of th e parties and the amount required to provide necessaries for the children"). As onecourt from a sister state has observed, "[f]rom earliest times the question of what is a necessary has frequently

perplexed the courts. Under prac tically all the authoriti es, these things are necessary which include shelter, food, clothing, and medical attendance, together with an education ." Esteb v. Esteb , 138 Wash. 174, 178, 244 P. 264, 265 (1926). The Esteb court noted, "As to the amount of education that shoul d be cons idered necessa ry , courtshave never laid down a hard and fast r ule." Esteb , 138 Wash. at 178, 244 P. at 265. The Esteb court h eld a s follows:No. 2--09--0536

-6- "[T]he question of what sort of an education i s necessary , being a relative one, the court should determine this in a proper casefrom all t

he fact s and cir

cumstanc es. Nor should the court be restricted to the station of the minor in society , but should, in deter mining th is fact, take into consideration the progress of society, and the

attendant requirements upon the citizens of to-day." Esteb , 138 Wash. at 182, 244 P. at 267. Si mi la rl y, the Supre

me Court of

North Dakota held that a

statute pe rtaining to "the maintenance of the childre

n of the ma

rriag e" authorized the

trial cou rt to order a trust fund established to pay for the child ren's college educations. Davis v. D avis , 268 N.W.2d 769, 778 (N.D. 1978), overruled in part

onother grounds , Nelson v. Trinity Medical Center, 419 N.W.2d 886 (N.D. 1988). The Davis court stated, "We are not unaware of the incr easing necessity

of a college education or its equivalent ***." Davis , 268 N.W.2d at 778. InIllinois, altho

ugh the obligat ion to car e for one 's child

ren ordi narily ends when they r

each the ag e o f m aj or it y (s ee ge ne ra ll y Kelley , 317 Ill. at 110 ("The obligation of the fa ther to su pport his children begins when the

child is born an

d continue s during

the minori

ty o f the chi ld")), the rule is not absolute. See Strom v. Strom , 13 Ill. App. 2d 354, 364 (1957). More than half a century a go, the Strom court

rejected the proposition

that "the jurisdiction of a court of chancery to provide for the care and

education o f a child ends the moment that child attains ma jority." Strom , 13 Ill. App. 2d at 364. According to the Strom court, "[w]here such care and educ ationare nec essary to equip the child for adult life and where the fina ncial cir cumstanc es of the

father are ent irely adequa te to meet such req uiremen ts, equity can and shoul d continue i ts jurisd iction." Strom , 13 Ill. App. 2d at 364. Relying in par

t on Esteb , the Strom court concluded that "it is the obligation of a pare nt of amplemeans to support a child incapable of self-support bey ond the pe

riod of that child' s minorityNo. 2--09--0536

-7-

and that th is obligation includes the duty to provide not only care and bare nece ssities but also a colle ge educati on, wher

e that ap pears de si rable in ord er to better equip the child for adult life." Strom , 13 Ill. A pp. 2d at 367 . Sect ion 5 13(a) o f the M arriage Act is cons istent with this under stand ing. Spe cif

ically, pursuan

t to section 513(a) , an orde r requir ing one or both pa

rents to contribu te to a child's educ ation is with in th e tria l cour t's authority to "award sums of money *** for the support of the child or children of the parties whohave att ained ma jority ." (Emphasis added.) 750 IL CS 5/513(a) (West 2008). Nonethe less, there appear to be no reported

decision s conside

ring whether th e obliga

tion to contribu te to a child's colle ge edu cation is " support" within the meaning of sectio n 659 of the

Act. However, in the realm of

federal bankruptcy

law, courts have frequently considered whether such obligations are support within the meaning of sec tion 523(a)(5) of the United States Bankruptcy Code (the Code) (11 U.S.C. §523(a)(5) (2000)), which, prior to 2005, provided

that certain debts "for alimony to, maintenance for, or support of [the deb tor 's] spouse or child" pursuant

to a domes tic relations judgment or order, or an agr eement o f the par

ties, were not dischargeable. See , e.g. , In re Seixas , 239 B.R. 3 98 (B.A .P. 9th Cir. 1999) (ho lding tha t, based on the plai

n language of

the part ies' agreement

to contribute to children's college educ ation, debtor's obligation under the agreement was nondi scharg eable

support) ; In re Warren , 160 B .R. 3 95, 40 0 (Bank r. D. M e. 199 3) (ho ldin g t hat , because purpose a nd functi on of par

ents' a greement to share anticipa ted expens es of the ir daug hters' colle ge ed uc at io n w as to "e ns ur e [ th ei r] da ug ht er s' 'e co no mi c s af et y' t hr ou gh th ei r c ol le ge ye ars, " father 's obli ga tions under the agreement wer e " 'in the nature of support' " and could not be discharged

in bankru

ptcy ); In re Pierce , 95 B.R. 154, 159 (Bankr. N.D. Cal. 1988) (holding that contractually

assumed debt

for expense of college education " should be excepted from disc harge ifNo. 2--09--0536

-8-

the parties intended it as support and if it can reasonably

be construed as support" ); In re L ineberry , 9 B.R. 700, 706-08 (Bankr. W.D. Mo. 1981) (ho lding that a provision of a separation agreeme nt requiringthe husba

nd to make

periodic pay ments to be held

by the wife f

or the college education of the parties' children was in the nature of suppor t, even though the pay

ments were not co ntin ge nt upon the children actually attending college). Pursuant to the above cases, the applicability of section

523(a)(5) of the Code depends not

onhow an oblig ation is designated, but on whether it is "in the nature of a limony, maintenance, or support." Lineberry

, 9 B.R. at 704. Although the question of whe ther an obligation constitutes "suppor t" is ultimately oneof federal law, because " there is no federal domestic relations law, the

*** court must naturally consider state law in determiningthe appropri ate federal sta ndard." Pierce , 95 B.R. at 158. "[T]he inquiry focuse s on the purpose and funct ion of the ob ligation in light of circu mstances as they existed at the time of its creatio n." Warren , 160 B.R. at 399. Thus , i n determiningwhether an obligation is in the nature of support, the word " support" should be read br oa dl y. Pierce , 95 B.R. at 159 . More over, "a paren t's ob ligat ion t o pay a chil d's college education expenses pursuant to a settlem ent agr eeme nt or court order may be nondischargeable under §523(a)(5) even thou

gh the p arent do es not have any legal d uty to support

a chil d once thatchild reaches the age of majori ty under applicable s tate law." Seixas , 239 B.R. at 403-04. Genera lly speak ing, courts have found agreeme nts, judg ments , and ord

ers req uiring one or both

parents to contribu te to a child's college education to qualify as "support," unless it appears that the true purpose of the agreement, judgment, or or der was to of

fset a di sparity in the division of marital pr op er ty. Compare Seixas , 239 B.R. at 405 (affirming bankruptcy court's conclusion that obligation to contribu

te to college education was support beca use, inter ali a , the agreeme nt con cernin g colle geNo. 2--09--0536

-9-

expenses " 'does not appea r to ... at tempt to ba

lance ou t an unequ

al prope rty division' ") and Warren , 160 B.R. at 400 (noting that parties' ag reement to share anticipated expen ses o f thei r daugh ter's college education "was not a pr operty division

device in disguise") with Inre Hale , 289 B.R. 788, 790 (B.A.P. 1st Cir. 2003) (ho ldi ng that debtor's obligation under sepa ration agreement to pay daught er's college tuition was not support where the agre ement spe cifical ly provided t hat child support did not inc lude coll ege e ducation costs and

"expres sly

charac teriz e[d] the ob ligation as 'prope rty settlement between the parties' give n 'in full satisfaction of the equitable division ... of marital assets' "). Inthis case , the rec ord is devoid of any evidenc e that th e t rue purp ose of the agree ment to contribu te to th e chil dren's colle ge education was to offset a disparity in the distribution of marital pr op er ty. Rather, the plain language of the agreement reflects a

n intention thatboth part

ies would bear at least some financial responsibility for the education of their children beyond hig

h school and that the trial court would determine the amount of each party 's contribution based, in part, on their respective abilities to pay. See In re Marriage of Thomas , 339 I ll. App. 3d 214, 228 (2003) (stating that, when inte

rpreting a marita l settleme nt agre ement, a

court may not interpre

t the contract in a way contrary to the plain language of the terms). A s discussed above, Illinois and other jurisdictions have recognized

that, in pro per cas es, a co llege educati on is nece ssary to prepa re a chi ld for ad

ult life and

ca nthus be grouped with the child's more basic nee ds, such as food, shelter, medi cal care, an d parental supervision. Con sequen tly, contribution to Ashley 's college education qualifies a s "support," and sect

ion 659 of t

he Act a uthoriz e s procee dings against the f ederal gover nment to collect James's s ocial se curity

disability benefits in satisfaction of that obligation. Accordingly , weNo. 2--09--0536

-10-

hold that the trial court erred when it vacated its prior contr i b utio n orde r on th e basi s that Jame s's income was exempt fr

om such co llection proceed ings. For the foregoing r

easons, we reverse the

order of the circuit court of Du Page County that vacate d the July

10, 2008, order re quiring James to con

tribute to Ashley 's educ ational expenses. Reversed. McLAREN and BURKE, JJ., concur.